CRS Annotated Constitution

The Case of
Cuba.—The question of Congress’ right also to recognize new
states was prominently raised in connection with Cuba’s
final and successful struggle for independence. Beset by
numerous legislative proposals of a more or less mandatory
character, urging recognition upon the President, the
Senate Foreign Relations Committee, in 1897, made an
elaborate investigation of the whole subject and came to
the following conclusions as to this power: “The
‘recognition’ of independence or belligerency of a foreign
power, technically speaking, is distinctly a diplomatic
matter. It is properly evidenced either by sending a
public minister to the Government thus recognized, or by
receiving a public minister therefrom. The latter is the
usual and proper course. Diplomatic relations with a new
power are properly, and customarily inaugurated at the
request of that power, expressed through an envoy sent for
the purpose. The reception of this envoy, as pointed out,
is the act of the President alone. The next step, that of
sending a public minister to the nation thus recognized,
is primarily the act of the President. The Senate can take
no part in it at all, until the President has sent in a
nomination. Then it acts in its executive capacity, and,
customarily, in ‘executive session.’ The legislative
branch of the Government can exercise no influence over
this step except, very indirectly, by withholding
appropriations. . . . Nor can the legislative branch of
the Government hold any communications with foreign
nations. The executive branch is the sole mouthpiece of
the nation in communication with foreign
sovereignties.

“Foreign nations communicate only through their
respective executive departments. Resolutions of their
legislative departments[p.546]upon
diplomatic matters have no status in international law. In
the department of international law, therefore, properly
speaking, a Congressional recognition of belligerency or
independence would be a nullity. . . . Congress can help
the Cuban insurgents by legislation in many ways, but it
cannot help them legitimately by mere declarations, or by
attempts to engage in diplomatic negotiations, if our
interpretation of the Constitution is correct. That it is
correct . . . [is] shown by the opinions of jurists and
statesmen of the past.”584 Congress was able
ultimately to bundle a clause recognizing the independence
of Cuba, as distinguished from its government, into the
declaration of war of April 11, 1898, against Spain. For
the most part, the sponsors of the clause defended it by
the following line of reasoning. Diplomacy, they said, was
now at an end, and the President himself had appealed to
Congress to provide a solution for the Cuban situation. In
response, Congress was about to exercise its
constitutional power of declaring war, and it has
consequently the right to state the purpose of the war
which it was about to declare.585 The
recognition of the Union of Soviet Socialist Republics in
1933 was an exclusively presidential act.

The Power of
Nonrecognition.—The potentialities of nonrecognition were
conspicuously illustrated by President Woodrow Wilson when
he refused, early in 1913, to recognize Provisional
President Huerta as the de facto government of Mexico,
thereby contributing materially to Huerta’s downfall the
year following. At the same time, Wilson announced a
general policy of nonrecognition in the case of any
government founded on acts of violence, and while he
observed this rule with considerable discretion, he
consistently refused to recognize the Union of Soviet
Socialist Republics, and his successors prior to President
Franklin D. Roosevelt did the same. The refusal of the
Hoover administration to recognize the independence of the
Japanese puppet state of Manchukuo early in 1932 was based
on kindred grounds. Similarly, the nonrecognition of the
Chinese Communist Government from the Truman
Administration to President Nixon’s de facto recognition
through a visit in 1972—not long after the People’s
Republic of China was admitted to the United Nations and
the exclusion of Taiwan—proved to be[p.547]an important part of American foreign policy during the
Cold War.586

No President was ever more jealous of his prerogative
in the realm of foreign relations than President Woodrow
Wilson. When, however, strong pressure was brought to bear
upon him by Great Britain respecting his Mexican Policy,
he was constrained to go before Congress and ask for a
modification of the Panama Tolls Act of 1911, which had
also aroused British ire. Addressing Congress, he said, “I
ask this of you in support of the foreign policy of the
Administration. I shall not know how to deal with other
matters of even greater delicacy and nearer consequence if
you do not grant it to me in ungrudging measure.”587

The fact is, of course, that Congress has enormous
powers, the support of which is indispensable to any
foreign policy. In the long run, Congress is the body that
lays and collects taxes for the common defense, that
creates armies and maintains navies, although it does not
direct them, that pledges the public credit, that declares
war, that defines offenses against the law of nations,
that regulates foreign commerce; and it has the further
power “to make all laws which shall be necessary and
proper”—that is, which it deems to be such—for carrying
into execution not only its own powers but all the powers
“of the government of the United States and of any
department or officer thereof.” Moreover, its laws made
“in pursuance” of these powers are “supreme law of the
land,” and the President is bound constitutionally to
“take care that” they “be faithfully executed.” In point
of fact, congressional legislation has operated to augment
presidential powers in the foreign field much more
frequently than it has to curtail them. The Lend–Lease Act
of March 11, 1941588 is the classic example,
although it only brought to culmination a whole series of
enactments with which Congress had aided and abetted the
administration’s foreign policy in the years between 1934
and 1941.589 Disillusionment with presidential
policies in the context of the Vietnamese conflict led
Congress to legislate restrictions, not only with respect
to the discretion of the President to use troops abroad in
the absence of a declaration of[p.548]war,
but also limiting his economic and political powers
through curbs on his authority to declare national
emergencies.590 The lesson of history,
however, appears to be that congressional efforts to
regain what is deemed to have been lost to the President
is intermittent, whereas the presidential exercise of
power in today’s world is unremitting.591

It is not within the province of the courts to inquire
into the policy underlying action taken by the “political
departments”— Congress and the President—in the exercise
of their conceded powers. This commonplace maxim is,
however, sometimes given an enlarged application, so as to
embrace questions as to the existence of facts and even
questions of law, which the Court would normally regard as
falling within its jurisdiction. Such questions are termed
“political questions,” and are especially common in the
field of foreign relations. The leading case is Foster v.
Neilson,592 where the matter in dispute
was the validity of a grant made by the Spanish Government
in 1804 of land lying to the east of the Mississippi
River, and in which there was also raised the question
whether the region between the Perdido and Mississippi
Rivers belonged in 1804 to Spain or the United
States.

Chief Justice Marshall held that the Court was bound
by the action of the political departments, the President
and Congress, in claiming the land for the United States.
He said: “If those departments which are intrusted with
the foreign intercourse of the nation, which assert and
maintain its interests against foreign powers, have
unequivocally asserted its right of dominion over a
country of which it is in possession, and which it claims
under a treaty;[p.549]if the legislature
has acted on the construction thus asserted, it is not in
its own courts that this construction is to be denied. A
question like this, respecting the boundaries of nations,
is, as has been truly said, more a political than a legal
question, and in its discussion, the courts of every
country must respect the pronounced will of the
legislature.”593 The doctrine thus clearly
stated is further exemplified, with particular reference
to presidential action, by Williams v. Suffolk Ins.
Co.594 In this case, the underwriters of a vessel
which had been confiscated by the Argentine Government for
catching seals off the Falkland Islands, contrary to that
Government’s orders, sought to escape liability by showing
that the Argentinean Government was the sovereign over
these islands and that, accordingly, the vessel had been
condemned for willful disregard of legitimate authority.
The Court decided against the company on the ground that
the President had taken the position that the Falkland
Islands were not a part of Argentina. “[C]an there be any
doubt, that when the executive branch of the government,
which is charged with our foreign relations, shall, in its
correspondence with a foreign nation, assume a fact in
regard to the sovereignty of any island or country, it is
conclusive on the judicial department? And in this view,
it is not material to inquire, nor is it the province of
the court to determine, whether the executive be right or
wrong. It is enough to know, that in the exercise of his
constitutional functions, he had decided the question.
Having done this, under the responsibilities which belong
to him, it is obligatory on the people and government of
the Union.

“If this were not the rule, cases might often arise,
in which, on most important questions of foreign
jurisdiction, there would be an irreconcilable difference
between the executive and judicial departments. By one on
these departments, a foreign island or country might be
considered as at peace with the United States; whilst the
other would consider it in a state of war. No
well–regulated government has ever sanctioned a principle
so unwise, and so destructive of national
character.”595 Thus, the right to determine
the boundaries of the country is a political
function,596 as is also the right to
determine what country is sovereign of a particular
region,597 to determine whether a community is
entitled under international law to be considered a
belligerent or an independent state,598 to[p.550]determine whether the other party has duly
ratified a treaty,599 to determine who is the de
jure or de facto ruler of a country,600 to determine
whether a particular person is a duly accredited
diplomatic agent to the United States,601 to determine
how long a military occupation shall continue in
fulfillment of the terms of a treaty,602 to determine
whether a treaty is in effect or not, although doubtless
an extinguished treaty could be constitutionally renewed
by tacit consent.603

585
Said Senator Nelson of Minnesota: “The President has
asked us to give him the right to make war to expel the
Spaniards from Cuba. He has asked us to put that power
in his hands; and when we are asked to grant that
power—the highest power given under the Constitution—we
have the right, the intrinsic right, vested in us by the
Constitution, to say how and under what conditions and
with what allies that war– making power shall be
exercised.”
31 Rec.3984
(1898).

586
President Carter’s termination of the Mutual Defense
Treaty with Taiwan, which precipitated a constitutional
and political debate, was perhaps an example of
nonrecognition or more appropriately derecognition. On
recognition and nonrecognition policies in the post–
World War II era, see Restatement, Foreign Relations,
op. cit., n.262, §§ 202, 203.

591
“We may say that power to legislate for emergencies
belongs in the hands of Congress, but only Congress
itself can prevent power from slipping through its
fingers.” Youngstown Sheet & Tube Co. v.
Sawyer,
343 U.S. 579, 654 (1952) (Justice
Jackson concurring). For an account of how the President
usually prevails, see H. Koh, The National Security
Constitution: Sharing Power after the Iran–Contra
Affairs (New Haven: 1990).